Eva Orticio Villamor-Goubeaux, DAB No. 2997 (2020)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Petitioner Eva Orticio Villamor-Goubeaux appeals the September 6, 2018 Administrative Law Judge (ALJ) decision, Eva Orticio Villamor-Goubeaux, DAB CR5181 (ALJ Decision).  The ALJ granted summary judgment for the Centers for Medicare & Medicaid Services (CMS), upholding CMS’s decision to revoke Petitioner’s enrollment in Medicare, effective November 24, 2015, based on her felony conviction for interference with child custody in violation of Ohio law and failure to report the conviction, under 42 C.F.R. § 424.535(a)(3) and (a)(9).  For the reasons explained below, we affirm the ALJ Decision.

Legal background

To receive Medicare payment, a “supplier” of Medicare services must be enrolled in the Medicare program.  42 C.F.R. §§ 400.202 (defining “Supplier”), 424.505.1   Enrollment confers on a supplier “billing privileges,” i.e., the right to claim and receive Medicare payment for health care services provided to program beneficiaries.  Id. §§ 424.502 (defining “Enroll/Enrollment”), 424.505.  CMS, which administers the Medicare program, regulates the enrollment of suppliers into the program and delegates certain program functions to private contractors.  Social Security Act (Act) §§ 1816, 1842, 1874A; 42 C.F.R. § 421.5. 

“The Secretary [of Health and Human Services] may refuse to enter into an agreement with a . . . supplier, or may terminate or refuse to renew such agreement, in the event that such . . . supplier has been convicted of a felony under Federal or State law for an offense which the Secretary determines is detrimental to the best interests of the program or program beneficiaries.”  Act § 1842(h)(8).  The regulations authorize CMS to revoke a

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supplier’s Medicare billing privileges for any of the “reasons” in 42 C.F.R. § 424.535(a).  Those reasons include:

(3)  Felonies.  (i) The . . . supplier . . . was, within the preceding 10 years, convicted (as that term is defined in 42 CFR 1001.2) of a Federal or State felony offense that CMS determines is detrimental to the best interests of the Medicare program and its beneficiaries. 
(ii)  Offenses include, but are not limited in scope or severity to –
(A) Felony crimes against persons, such as murder, rape, assault, and other similar crimes for which the individual was convicted, including guilty pleas and adjudicated pretrial diversions.

42 C.F.R. § 424.535(a)(3)(i), (ii)(A).

CMS also may revoke a supplier’s billing privileges if the “supplier did not comply with the reporting requirements specified in [42 C.F.R.] § 424.516(d)(1)(ii) and (iii)[.]”  Id. § 424.535(a)(9).2   Nonphysician practitioners “must” report “[a]ny adverse legal action” “to their Medicare contractor” “[w]ithin 30 days.”  Id. § 424.516(d)(1)(ii); see also id. § 424.502 (defining “[f]inal adverse action” to include “[a] conviction of a Federal or State felony offense (as defined in [42 C.F.R.] § 424.535(a)(3)(i)) within the last 10 years preceding enrollment, revalidation, or re-enrollment”). 

If CMS revokes a supplier’s billing privileges, the supplier’s Medicare participation agreement is terminated, and the supplier is “barred from participating in the Medicare program from the date of the revocation until the end of the re-enrollment bar.”  Id. § 424.535(b), (c).  When a revocation is based on a felony conviction, the revocation is effective with the date of the conviction.  Id. § 424.535(g).  “The re-enrollment bar begins 30 days after CMS or its contractor mails notice of the revocation.”  Id. § 424.535(c)(1).  The re-enrollment bar lasts a minimum of one year, but not more than three years, depending on the severity of the basis for revocation.  Id.  

A supplier may appeal a decision to revoke its Medicare billing privileges in accordance with the regulations in 42 C.F.R. Part 498.  Id. § 424.545(a).  A supplier must first request “reconsideration” of the initial determination.  Id. §§ 498.3(b)(17), 498.5(l), 498.22(a).  If dissatisfied with the “reconsidered determination,” the supplier may request a hearing before an ALJ.  Id. § 498.40.  A party dissatisfied with an ALJ’s decision may request review by the Departmental Appeals Board (Board).  Id. §§ 498.80, 498.82.

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Case background

The following facts are undisputed and drawn from the record evidence on which the ALJ made his decision. 

Petitioner, a nurse practitioner licensed by the State of Ohio, enrolled as a Medicare supplier in 2015.  CMS Ex. 2, at 1-2.  Petitioner and her husband agreed to a custody arrangement for their only child in connection with their divorce.  CMS Ex. 1, at 16.  From late November 2013 to February 27, 2014, Petitioner and her child subject to the custody agreement resided out of Ohio in violation of a court order concerning agreed‑upon child custody terms.  Id. at 14-18, 30.  Under those terms, the child was to live with Petitioner at the marital home, but Petitioner’s husband was to have “parenting time” with the child.  Id. at 16.  However, neither Petitioner nor her husband could take the child out of the state for more than 14 days.  Id.    

On November 24, 2015, Petitioner was convicted in the Court of Common Pleas, Miami County, Ohio, of a fifth degree felony offense of interference with custody in violation of Ohio Rev. Code § 2919.23(A)(1).3  CMS Ex. 3, at 1.  On appeal, the Court of Appeals of Ohio, Second Appellate District, Miami County, affirmed the trial court’s judgment on October 21, 2016.  CMS Ex. 1, at 15-34.    

On May 24, 2017, CGS Administrators, LLC, a Medicare Administrative Contractor, notified Petitioner that her enrollment and billing privileges were revoked effective November 24, 2015, based on her conviction for interference with custody and failure to report the conviction.  Id. at 8-9 (citing 42 C.F.R. § 424.535(a)(3), (a)(9)).  CGS Administrators also informed Petitioner that she was barred from re-enrolling for three years, effective 30 days from the date of the revocation notice.  Id. at 9 (citing 42 C.F.R. § 424.535(c)).  Petitioner requested reconsideration.  Id. at 10-13.  On September 27, 2017, CMS denied the request, citing 42 C.F.R. § 424.535(a)(3) and 42 C.F.R. § 424.535(a)(9) as bases for revocation.  Id. at 1-7.

Petitioner requested a hearing.  CMS moved for summary judgment, asserting that the undisputed facts establish a 2015 state felony conviction for interference with custody within 10 years of revocation, and a failure to timely report that conviction, either of which would support revocation.  CMS’s pre-hearing brief in support of summary affirmance at 8-16.  Petitioner opposed the motion, asserting that interference with

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custody is not an offense on which revocation under 42 C.F.R. § 424.535(a)(3) may be based because “it is not akin to the enumerated crimes deemed to be per se detrimental to the best interests of the Medicare program and its beneficiaries” and is not detrimental to the program and its beneficiaries.  Petitioner’s pre-hearing brief and opposition to motion for summary judgment (P. Br.) at 5 (bold in original removed), 10.  Nor can CMS revoke under 42 C.F.R. § 424.535(a)(9), asserted Petitioner, because the conviction CMS said she was required to report within 30 days was not a qualifying offense for revocation under 42 C.F.R. § 424.535(a)(3).  Id. at 13-14. 

On September 6, 2018, the ALJ granted summary judgment for CMS.  The ALJ determined that there was no genuine dispute as to any material fact that would require a hearing to decide the legal question presented:  whether the undisputed facts establish a felony offense detrimental to the Medicare program and its beneficiaries and thus a basis for revocation.  ALJ Decision at 4-5.  Rejecting Petitioner’s argument that whether conviction for a particular felony offense is detrimental is a factual question, the ALJ stated, “Petitioner’s argument overlooks that the facts related to her conviction are not disputed and no trial is necessary to determine those facts.”  Id. at 5.  The ALJ determined that the undisputed facts established a basis for revocation and stated, “[a]ccordingly, summary judgment is appropriate.”  Id.      

Among the ALJ’s findings, based on undisputed evidence, was that “Petitioner was convicted on November 24, 2015, of the felony offense of interference with custody in violation of Ohio Rev. Code § 2919.23(A)(1) in the Miami County Court of Common Pleas.”  Id. at 5 (bolding in original removed).  The ALJ noted that Petitioner did not dispute she was convicted of a felony within 10 years preceding revocation.  Id. at 9. 

Addressing the first revocation basis, the ALJ determined that, of the four types of “presumptively detrimental offenses” in 42 C.F.R. § 424.535(a)(3)(ii)(A)-(D) – felony crimes against persons, financial crimes, any felony that placed the Medicare program or its beneficiaries at immediate risk, and any felonies that would result in mandatory exclusion under section 1128(a) of the Act – the first type, felony crimes against persons, was the only one “potentially applicable” here.  Id.  The ALJ determined that interference with custody under Ohio Revised Code § 2919.23(A)(1) was “very similar to kidnapping as described in the Ohio statutes,” noting that, although kidnapping is not expressly named in 42 C.F.R. § 424.535(a)(3)(ii)(A), CMS in rulemaking discussed kidnapping as a crime against a person.  Id. at 10 (citing 71 Fed. Reg. 20,754, 20,760 (Apr. 21, 2006)).4  The ALJ rejected Petitioner’s argument that, under Ohio law, interference with custody is considered to be a “crime against the family” rather than a “crime against a person”

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because “families are . . . composed of persons.”  Id. (citing P. Br. at 5-6).  The ALJ stated, “Interference with custody obviously involves the person in custody and the person or persons whose right to custody is violated.  Therefore, I am satisfied that, at the very least, interference with custody is very much akin to a crime against a person even though it is characterized under Ohio law as a crime against the family.”  Id.  The ALJ moreover noted that Ohio’s statutes on kidnapping, abduction, and interference with custody all involve removing a person and that, despite possible differences in mens rea among those offenses, “one who takes a child . . . from the place where he or she is found and thereby takes a child from a parent, guardian, or custodian, could arguably be charged with violations of all three Ohio criminal statutes.”  Id.  The ALJ stated that, “[a]ccordingly, I conclude that interference with custody is very much akin to kidnapping or abduction under Ohio law.”  Id.

The ALJ further noted that here CMS had made an “individualized determination” that interference with custody “was detrimental to the best interests of the Medicare program and its beneficiaries.”  Id. at 10.  See also id. at 11 (citing 79 Fed. Reg. 72,500, 72,509-10 (Dec. 5, 2014) and noting that “the hearing officer concluded that the facts underlying Petitioner’s felony called into question her trustworthiness and veracity as it relates to her ability to abide by governmental rules”).

The ALJ went on to determine that CMS established a second revocation basis, 42 C.F.R. § 424.535(a)(9), because Petitioner did not dispute that she failed to report the conviction.  Id. at 8, 12.  The ALJ rejected Petitioner’s argument that she was not required to report the conviction because interference with custody is not a qualifying offense for revocation under 42 C.F.R. § 424.535(a)(3).  Id. at 12-13.  Noting that the Board had determined that the phrase “any adverse legal action” in 42 C.F.R. § 424.516(d)(1)(ii) is “broader than ‘final adverse action’” in 42 C.F.R. § 424.502 and “includes legal action adverse to the . . . supplier’s interest,” the ALJ stated that the conviction for interference with custody was both an “adverse legal action” and a “final adverse action.”  Id. (citing Akram A. Ismail, M.D., DAB No. 2429, at 11 (2011)).

The ALJ further determined that the effective date of revocation is November 24, 2015, the date of the conviction.  Id. at 13-14 (citing 42 C.F.R. § 424.535(g)).  Noting that the “failure to report the conviction is an independent basis for revocation under 42 C.F.R. § 424.535(a)(9) that would normally be effective 30 days after notice of the initial determination,” the ALJ stated that “the regulation does not grant CMS or its contractor discretion to choose the later effective date.”  Id. at 14.

Lastly, the ALJ stated that he was without authority to review the three-year re‑enrollment bar that began on June 23, 2017, 30 days after the date of mailing of the revocation notice, under 42 C.F.R. 424.535(c).  Id. at 13 and 14 (citing authorities).  See also id. at 1.

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Standard of review

“The standard of review on a disputed issue of law is whether the ALJ decision is erroneous.”  Guidelines - Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s or Supplier’s Enrollment in the Medicare Program (Guidelines), available at https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/enrollment/index.html.

Whether summary judgment is appropriate is a legal issue that we address de novo.  Patrick Brueggeman, D.P.M., DAB No. 2725, at 6 (2016) (citing Lebanon Nursing & Rehab. Ctr., DAB No. 1918, at 4 (2004)); Guidelines.  Summary judgment is appropriate if there is no genuine dispute of fact material to the result and the moving party is entitled to judgment as a matter of law.  See 1866ICPayday.com, L.L.C., DAB No. 2289, at 2 (2009) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)). 

Analysis

CMS may revoke a Medicare supplier’s enrollment and billing privileges under section 424.535(a)(3) if:  (1) the supplier was, within the preceding 10 years, convicted of a felony offense; and (2) the conviction was for an “offense that CMS determines is detrimental to the best interests of the Medicare program and its beneficiaries.”  42 C.F.R. § 424.535(a)(3)(i); Pa. Physicians, P.C., DAB No. 2980, at 5 (2019).  The supplier is “convicted” for purposes of section 424.535(a)(3) if “[a] Federal, State or local court has made a finding of guilt against” the supplier.  42 C.F.R. § 1001.2 (cross-referenced in 42 C.F.R. § 424.535(a)(3)(i)).

The undisputed record evidence establishes that, on November 24, 2015, Petitioner was convicted of felony interference with custody for violating Ohio Revised Code § 2919.23(A)(1) by removing her minor child from Ohio for an extended time period contrary to the terms of a child custody order.  CMS Ex. 1, at 15-34; CMS Ex. 3, at 1.  CMS’s contractor revoked Petitioner’s enrollment and billing privileges by notice issued on May 24, 2017, less than two years after the conviction.  CMS Ex. 1, at 8-9.  The remaining question, then, is whether felony interference with custody qualifies as an “offense that CMS determines is detrimental to the best interests of the Medicare program and its beneficiaries.”  See 42 C.F.R. § 424.535(a)(3)(i).  Petitioner now asserts, as she did before the ALJ, that interference with custody is not a qualifying offense because it is not among the types felony offenses named in 42 C.F.R. § 424.535(a)(3)(A)-(D), and, specifically, it was not an offense “against persons.”  Brief in support of request

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for review (P. Br. to Board) at 3.5   She argues that CMS cannot revoke under section 42 C.F.R. § 424.535(a)(9) because she was not obligated to report a conviction for an offense that is not a crime “against persons” within the meaning of 42 C.F.R. § 424.535(a)(3)(ii)(A).  Id. at 8.

As we explain below, we determine, as the ALJ did, that the undisputed evidence supports revocation.  Both cited revocation bases are established.6   The ALJ did not err in granting summary judgment for CMS.

I. The categories of offenses in 42 C.F.R. § 424.535(a)(3)(ii)(A)-(D) are those CMS has determined are presumptively or per se detrimental to the best interests of the Medicare program and its beneficiaries, but CMS’s authority to revoke under section 424.535(a)(3) is not limited to those instances in which a felony offense falls within a named offense category.

Petitioner asserts that interference with custody is not a qualifying offense because it is not “necessarily” an offense “against a person” under 42 C.F.R. § 424.535(a)(3)(ii)(A), the only category of offenses named in section 424.535(a)(3)(ii) that is possibly implicated in her case.  P. Br. to Board at 3, 7.  She distinguishes her conviction for interference with custody, an offense found in Chapter 2919 of the Ohio Revised Code, “Offenses Against the Family,” from kidnapping, taking issue with the ALJ’s statement that interference with custody is very similar to kidnapping.  Id. at 3-4.  According to Petitioner, had the Ohio legislature wanted interference with custody to be classified as a crime against a person, it would have done so under another chapter in the Ohio Revised Code.  Id. at 3.  And, she says, if the legislature had determined that the offense was similar to kidnapping, it would have classified it under Chapter 2905 of the Ohio Revised Code, “Kidnapping and Extortion.”  Id. at 4.  Petitioner maintains that there are significant differences between interference with custody and kidnapping.  Id.  Kidnapping, she says, involves the use of “force, threat, and restraint,” id. at 4-5, and “shows complete disrespect for life,” id. at 7, whereas interference with the custody of a minor child in connection with a domestic relations matter (as was the case here), “merely” involves “enticement, a taking, or keeping a child from a parent,” without malice or intent to harm, id. at 5 (footnote omitted).  She asserts that those differences

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“give[] insight into” the Ohio legislature’s intent and, accordingly, “deference should be given to the State when interpreting its own statutes.”  Id. at 4.  She asserts that, because she was not convicted of a crime against a person and no other offense category is implicated, CMS does not have a basis to revoke under section 424.535(a)(3).  Id. at 7, 8.

Petitioner’s arguments are based on a faulty assumption – that the offense must fall under one of the four categories of offenses in section 424.535(a)(3)(ii) to qualify as a basis for revocation under section 424.535(a)(3).  The Board has repeatedly stated that the categories in the regulation mean that CMS has determined, by rulemaking, that certain types of felony offenses are presumptively,7 or per se, detrimental to the best interests of the Medicare program and its beneficiaries.  See, e.g., Lilia Gorovits, M.D., P.C., DAB No. 2985, at 10 (2020), appeal docketed, Gorovits v. Azar, No. 2:20-cv-01850 (E.D. Pa. Apr. 9, 2020); Pa. Physicians, DAB No. 2980, at 6; Michael Scott Edwards, OD, and M. Scott Edwards, OD, PA, DAB No. 2975, at 9-10 & 10 n.12 (2019), appeal dismissed per settlement, No. 2:19-cv-00048 (E.D.N.C. Feb. 26, 2020); Cornelius M. Donohue, DPM, DAB No. 2888, at 4-5 & 5 n.3 (2018); Letantia Bussell, M.D., DAB No. 2196, at 9-10 (2008).

However, 42 C.F.R. § 424.535(a)(3)(i) authorizes CMS to determine on a case‑by‑case, adjudicative basis whether a felony, even one that does not fall within any named category of felony offenses, is detrimental to the Medicare program and its beneficiaries.  See, e.g., Gorovits, at 10-11; Edwards at 9-10.  As the Board stated: 

[S]ection 424.535(a)(3) does not limit the reach of CMS’s revocation authority to crimes that CMS has determined via rulemaking to be detrimental to Medicare . . . [and] does not preclude CMS from making a case‑specific, or adjudicative, determination that a crime or category of crime not specified in the regulation is detrimental to the best interests of Medicare. 

Fady Fayad, M.D., DAB No. 2266, at 8 (2009) (emphasis in original removed), aff’d, Fayad v. Sebelius, 803 F. Supp. 2d 699 (E.D. Mich. 2011). 

When CMS revised section 424.535(a)(3) effective February 2015, CMS explained that, due to “the very serious nature of any felony conviction, our authority in [section] 424.535(a)(3)(i) should not be restricted to the [specified] categories of felonies.”  Gorovits at 10 (quoting 79 Fed. Reg. 72,500, 72,509-72,510 (Dec. 5, 2014) (preamble)). 

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CMS also explained, however, that in exercising its authority to revoke based on a case‑specific determination it would “carefully review[]” the “specific facts of each individual situation” “on its own merits” to determine “whether a particular conviction will or will not result in the revocation . . . of Medicare enrollment.”  Id. at 10-11 (quoting 79 Fed. Reg. at 72,510); see also Brenda Lee Jackson, DAB No. 2903, at 8 (2018) (discussing same preamble language) and 79 Fed. Reg.at 72,512 (“[W]e will only exercise our authority under . . . [section] 424.535(a)(3) after very careful consideration of the relative seriousness of the underlying offense and all of the circumstances surrounding the conviction.  It should in no way be assumed that every felony conviction will automatically result in a denial or revocation.”).

As the Board also stated in Gorovits, CMS’s authority to determine whether a felony is detrimental to Medicare is derived in part from section 1842(h)(8) of the Act, which expressly authorizes the Secretary of Health and Human Services to “terminate or refuse to renew” a supplier agreement to participate in Medicare “in the event that such . . . supplier has been convicted of a felony under Federal or State law for an offense which the Secretary determines is detrimental to the best interests of the program or program beneficiaries.”  Gorovits at 11; see also Saeed A. Bajwa, M.D., DAB No. 2799, at 7-8 (2017), appeal dismissed per stipulation, No.3:17-cv-00792 (N.D.N.Y. Dec. 28, 2017).  That authority is conferred to CMS through section 424.535(a)(3).  Gorovits at 11 (citing Bussell, DAB No. 2196, at 12). 

Accordingly, whether felony interference with custody is a crime against a person and whether it is akin to kidnapping are, ultimately, not the determinative issues here.  Rather, the issue is whether CMS has determined that the crime of which Petitioner has been convicted is detrimental to the Medicare program and its beneficiaries.  If a felony offense fits into one of the named categories (or is one of the named examples of offenses (e.g., murder or income tax evasion)) that CMS has determined by rulemaking is detrimental, the adjudicator would not need to also address whether CMS made a case‑specific determination of detriment to the Medicare program to support revocation.  See Donohue, DAB No. 2888, at 6 (“[N]o . . . determination [on whether a crime is detrimental] is required if, as is the case here, the supplier’s offense falls within one of the categories of crimes that CMS has, by rulemaking . . . determined to be detrimental to Medicare.”)8 ; see also John A. Hartman, D.O., DAB No. 2911, at 14-15 (2018) (similar holding, in the context of denial of enrollment under 42 C.F.R. § 424.530(a)(3)).  But a case‑specific, adjudicative determination that a particular felony offense poses a risk of harm to Medicare could itself be a basis for a lawful revocation.   

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Here, CMS has made a case‑specific, adjudicative determination that felony interference with custody is detrimental to the Medicare program and its beneficiaries.  Therefore, even were we to conclude that felony interference with custody did not fall within a category of per se offenses (a conclusion we need not reach here to affirm the ALJ’s decision), as we explain below in section II, CMS nevertheless had a lawful basis to revoke Petitioner’s enrollment based on its determination that the offense raises concerns about Petitioner’s ability to be a supplier who complies with Medicare participation requirements – a determination we find reasonable.  In our view, that is the ultimate issue in this case.  Moreover, as we address below in section III, it is undisputed that Petitioner failed to report her felony conviction.  CMS thus could have revoked Petitioner’s Medicare enrollment and billing privileges, lawfully, based solely on 42 C.F.R. § 424.535(a)(9).   

II. CMS has revoked Petitioner’s enrollment and billing privileges under 42 C.F.R. § 424.535(a)(3) based on its determination that the felony offense of interference with custody in violation of Ohio law poses a risk to the best interests of the Medicare program and its beneficiaries.

The Board has repeatedly stated that where CMS has determined that a legal basis for revocation exists and it proceeds with revocation as an exercise of its discretion, on appeal, the ALJ and the Board may determine whether CMS has established a legal basis to revoke, but not look behind CMS’s exercise of its discretion to revoke.  See, e.g., Gorovits, DAB No. 2985, at 10; Donohue, DAB No. 2888, at 4.  CMS “may have discretion to consider unique or mitigating circumstances in deciding whether, or how, to exercise its revocation authority.”  Care Pro Home Health, Inc., DAB No. 2723, at 9 n.8 (2016).  However, ALJs and the Board “may not substitute [their] discretion for that of CMS in determining whether revocation is appropriate under all the circumstances.”  Abdul Razzaque Ahmed, M.D., DAB No. 2261, at 19 (2009), aff’d, Ahmed v. Sebelius, 710 F. Supp. 2d 167 (D. Mass. 2010).  In recognition of those decisions, the ALJ stated that, “[s]o long as an ALJ finds that CMS had a regulatory basis for revocation, the ALJ (and the Board on appeal) may not refuse to apply the regulation and must sustain the revocation.”  ALJ Decision at 11-12 (citing Stanley Beekman, D.P.M., DAB No. 2650, at 10 (2015) and Bussell, DAB No. 2196, at 13), 13 (stating that the ALJ had no authority to review CMS’s exercise of discretion to revoke).

CMS briefly stated that it considered interference with custody to be a crime against a person, but went on to make a case‑specific determination of detriment to the program.  It wrote:

If, in the alternative, [Petitioner’s] felony crime is not considered to be per se detrimental, CMS still finds that [her] felony crime of interference with custody is detrimental to the best interests of the Medicare program and its beneficiaries.  [Petitioner’s] felony conviction involved her violation of a

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government issued legal order.  [She] violated her custody agreement with her ex-husband by taking her daughter out of the state for more than 14 days without permission from her ex-husband or the court.  [She] claimed that she intended on filing a motion to modify the custody agreement before she moved [to another state] with her daughter.  However, [she] did not file the motion to modify the custody agreement before moving [to another state].[9 ]  [Her] felony conviction calls into question her trustworthiness and veracity as it relates to her ability to abide by governmental rules.  Payment under the Medicare program is made for claims submitted in a manner that relies upon the trustworthiness of our Medicare partners.  Given the facts underlying [Petitioner’s] felony conviction, Trust Funds and the Medicare beneficiaries may be at risk if she continues to participate in the program.  It necessarily follows that placing Trust Funds at risk is also a detriment to the beneficiaries.  Therefore, CMS finds that [Petitioner’s] conviction is detrimental to the Medicare program and its beneficiaries.

CMS Ex. 1, at 4-5.

Petitioner devotes much of her briefing to arguments about the circumstances under which she took her child out of Ohio, drawing distinctions between her actions and kidnapping because she takes issue with the ALJ’s likening her offense to kidnapping.  Regardless of any such distinction, we reject the implication that the revocation was not lawful or justifiable to the extent CMS did not consider the specific circumstances under which interference with custody arose.  P. Br. to the Board at 5-6 (stating that her wrongdoing was not truly criminal as kidnapping would be since interference with custody arose from a divorce proceeding and should have been resolved outside of the criminal process; and “[h]ad a temporary order been issued in the domestic relations case, there would have been no interference with custody”).  CMS’s rationale does indicate consideration of the underlying circumstances. 

But, more to the point, CMS was under no obligation to refrain from proceeding with revocation because the offense arose from a domestic relations dispute or because Petitioner did not actually “kidnap” her child with bad intent.  See Pa. Physicians, DAB No. 2980, at 6 (stating that nothing in section 424.535(a)(3) “requires CMS to weigh circumstances besides the timing and nature of a felony conviction” to decide whether to revoke).  The fact remains that Petitioner was convicted of a felony crime within 10 years of the revocation.  For purposes of revocation, it is irrelevant whether Petitioner would not have been convicted and “would not be facing revocation” based on a conviction had the dispute been resolved in a “domestic court forum.”  P. Reply Br. to Board at 1.

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Ultimately, the issue here is whether CMS, in its exercise of discretion, has determined that a felony crime is detrimental to the Medicare program and its beneficiaries, not how a state legislature classified, or could have classified, certain types of crimes (P. Br. to Board at 3-4),10 or that the Ohio courts have “frowned upon the use of criminal law in domestic relations matters” (id. at 6).

Petitioner also asserts “[t]he ALJ was wrong in adopting the hearing officer’s conclusion that the facts underlying Petitioner’s felony call into question her trustworth[iness] and veracity as it related to her ability to abide by government rules” because “[t]he same could be said about drivers who speed or pedestrians who jaywalk.”  P. Br. to Board at 7.  Petitioner maintains that nothing in the record supports CMS’s determination that her offense raised questions about her trustworthiness and veracity.  Id.

Petitioner’s argument misses the point.  The scenario presented here is distinguishable from a situation involving a jaywalker heedlessly crossing the street other than at a designated crossing area or against a traffic light, or a person recklessly driving at high speed.  Petitioner herself states that, even though her “actions met the elements of” the crime of interference with custody, the “criminal matter had nothing to do with custody itself, but everything to do with the violation of the court order that required court action for the Petitioner to take her daughter with her to another state.”  P. Br. to Board at 6.  The nature of Petitioner’s transgression is such that it indicates a willingness to knowingly violate a court order to which she was bound, thus raising a concern about her ability to be a supplier in the Medicare program who understands the importance of complying with supplier requirements and complies with them.  See 71 Fed. Reg. 20,754, 20,773-74, 20,758 (Apr. 21, 2006) (explaining that the central purpose of the enrollment provisions is to protect beneficiaries and the Medicare Trust Funds and, to that end, CMS is thus concerned about maintaining the integrity of the program).  As CMS explained, the enrollment provisions are based on the understanding that “there is a relationship between fulfilling the requirements stipulated in the Medicare program statutes and related laws, the integrity of the provider and supplier, the quality of care furnished to Medicare beneficiaries, and the confidence of the public in the Medicare program.”  Id. at 20,758.

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The scope of our review of a CMS decision to revoke a supplier’s enrollment is limited to determining whether CMS had a legal basis for revocation.  Although CMS has discretion to consider case‑specific circumstances in deciding whether, or how, to exercise its revocation authority, we may not substitute our discretion for that of CMS.  Douglas Bradley, M.D., DAB No. 2663, at 13 (2015) (“[I]f CMS establishes that the regulatory elements necessary for revocation are satisfied, as they are here, then the revocation must be sustained, and neither the administrative law judge nor the Board may substitute its discretion for that of CMS in determining whether revocation is appropriate under all the circumstances.” (Internal quotation marks and citation omitted)), appeal dismissed per stipulation, Bradley v. Burwell, No. 2:15-cv-08835 (D.N.J. June 2, 2017).  Based on the rationale set out in sections I and II above, we conclude that CMS has established a lawful basis for revocation pursuant to 42 C.F.R. § 424.535(a)(3).   

III. It is undisputed that Petitioner did not report her felony conviction for interference with custody, an adverse legal action, and, accordingly, CMS has a second basis for revocation under 42 C.F.R. § 424.535(a)(9).

Where CMS revokes on multiple grounds, the revocation need be upheld on a single lawful basis in order to be sustained.  See, e.g., Angela R. Styles, M.D., DAB No. 2882, at 9 n.10 (2018); Jason R. Bailey, M.D., P.A., DAB No. 2855, at 15 (2018).  As set out above, the ALJ determined, and we agree, CMS has established a legal basis for revocation under 42 C.F.R. § 424.535(a)(3).  Accordingly, the revocation would stand regardless of whether CMS is able to establish an additional revocation basis under 42 C.F.R. § 424.535(a)(9).  Nonetheless, we agree with the ALJ’s determination that revocation was also lawful under section 424.535(a)(9).     

A nonphysician practitioner, such as Petitioner, must comply with 42 C.F.R. § 424.516(d)(1)(ii), which requires the nonphysician practitioner to report “[a]ny adverse legal action” to her Medicare contractor within 30 days.  The failure to comply with this reporting requirement is a ground for revocation.  42 C.F.R. § 424.535(a)(9). 

Petitioner asserts that she was not obligated to report the conviction for interference with custody because the offense is not a crime against a person that could be the basis for revocation under section 424.535(a)(3).  P. Br. to Board at 8.  According to Petitioner, the “failure to report depends on whether CMS or petitioner prevails in the underlying arguments concerning whether interference with custody is a qualifying offense” and, “[i]f Petitioner prevails” on this, “the issue is moot.”  P. Br. at 14.  We have already addressed the argument that the offense is not a qualifying offense for revocation under section 424.535(a)(3).  Petitioner’s argument disputing CMS’s reliance on section 424.535(a)(9) as a second revocation basis assumes that, where, as here, CMS is relying on both sections 424.535(a)(3) and (a)(9), with respect to section 424.535(a)(9), the supplier is required only to report the felony offense that is the basis for revocation under section 424.535(a)(3) and that CMS must first establish that particular felony offense is a

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qualifying felony offense for revocation under section 424.535(a)(3).  The assumption is faulty, and there is no such limitation.  The regulation at 42 C.F.R. § 424.516(d)(1)(ii) requires a nonphysician supplier to report “[a]ny” adverse legal action.  And, although the term “adverse legal action” is not defined in the Part 424 enrollment regulations, it is quite plain to us that a felony conviction, here, for interference with custody, is indeed an “adverse legal action.”11

Suppliers, as participants in the Medicare program, have a duty to be aware of the participation requirements, including applicable reporting requirements with which they must comply.  See, e.g., Jackson, DAB No. 2903, at 10-11 (and cited cases);Francis J. Cinelli, Sr., D.O., DAB No. 2834, at 10 (2017) (and cited cases).  Petitioner does not dispute that she failed to report the felony conviction.  CMS has established an additional basis to revoke under 42 C.F.R. § 424.535(a)(9). 

Conclusion

We affirm the ALJ Decision.

1. We apply the regulations in 42 C.F.R. Part 424 that were in effect at the time of CMS’s or its contractor’s determination to revoke.  See Meindert Niemeyer, M.D., DAB No. 2865, at 2 n.2 (2018) (citing John P. McDonough III, Ph.D., et al., DAB No. 2728, at 2 n.1 (2016)).
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2. The regulation at 42 C.F.R. § 424.535(a)(9) was revised after the revocation on appeal in this case.  See 84 Fed. Reg. 47,794, 47,854 (Sept. 10, 2019) (eff. Nov. 4, 2019).  As noted, we apply the regulation that was in effect at the time of revocation.
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3. Section 2919.23(A)(1) of the Ohio Revised Code provided that “[n]o person, knowing the person is without privilege to do so or being reckless in that regard, shall entice, take, keep or harbor a person identified in division (A)(1) [a child under the age of eighteen] . . . from the parent, guardian, or custodian of . . . [the child].”  Violation of this law is a fifth degree felony if the child involved is removed from Ohio.  Ohio Rev. Code § 2919.23(D)(2).
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4. In discussing conviction for “crimes against persons” as a basis to deny enrollment under 42 C.F.R. § 424.530(a)(3), CMS stated that “it is reasonable for the Medicare program to question the ability of the individual or entity with such a history to respect the life and property of program beneficiaries.”  71 Fed. Reg. at 20,760.
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5. The ALJ expressly addressed the other three named types of felony offenses – financial crimes; any felony that placed the Medicare program or its beneficiaries at immediate risk (such as a malpractice suit that results in a conviction of criminal neglect or misconduct); and any felonies that would result in mandatory exclusion under section 1128(a) of the Act – and determined that those types of offenses are not implicated here.  See ALJ Decision at 9; 42 C.F.R. § 424.535(a)(3)(ii)(B), (C), (D).  Neither party raises an argument about this aspect of the ALJ’s analysis.
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6. Petitioner does not raise any argument about the ALJ’s determination that the effective date of revocation is November 24, 2015, or his determination that he had no authority to review the duration of the re-enrollment bar, which began on June 23, 2017.  ALJ Decision at 13-14 (citing, inter alia, 42 C.F.R. § 424.535(c), (g)).  We do not address these matters.
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7. Petitioner refers to the offenses in the regulation as “presumptively detrimental” offenses.  P. Br. to Board at 3.  She also acknowledges that “the categories listed [in the regulation] are not exclusive or limiting.”  P. Reply Br. to Board at 2.  Her arguments nevertheless convey an assumption that revocation under section 424.535(a)(3) cannot be valid unless it is based on a felony offense that fits into one of the named categories.
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8. The analyses in earlier decisions we cite, issued based on the regulations in effect before the February 2015 revisions, are applicable here because the prior and revised regulations describe the presumptive detrimental felony offenses or offense categories similarly.  See Edwards at 10 n.12; Donohue at 5 n.3; John A. Hartman, D.O., DAB No. 2911, at 14-17 (2018).
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9. Petitioner does not dispute this, and we see no record evidence contrary to CMS’s statement.
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10.  In discussing CMS’s authority to make case‑specific, adjudicative determinations about felony offenses, CMS has acknowledged that there are variations among state criminal laws, but also stated that any felony crime, regardless of type, raises concerns about the risk of harm the person convicted of that felony crime poses to the Medicare program.  See Hartman, DAB No. 2911, at 14 (discussing preamble language, and stating that “CMS . . .  reinforced its position that it has the authority to consider a particular felony crime to determine what if any risk the person who committed such a crime poses to the program regardless of how the underlying criminal statute defines the crime” (emphasis in original)); id. at 19 (discussing preamble language).  We construe the ALJ’s analysis to have addressed this point.  The ALJ noted Petitioner’s arguments concerning variations among state laws, some which treat interference with custody as a crime against a person while others do not, but stated that “Petitioner’s concern clearly illuminates why it is the CMS characterization of a crime and not that of the state that must control in this federal program.”  ALJ Decision at 10.
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11. And, as the ALJ noted, the felony conviction in this instance also meets the definition of “final adverse action” under 42 C.F.R. § 424.502.  ALJ Decision at 12-13.
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